Posted
by
Soulskill
on Monday May 24, 2010 @01:27PM
from the king-of-the-patent-trolls dept.

eldavojohn writes "It's a classic case that comes up when dealing with patents. A hospital's research on the donated brains of deceased children has been in limbo for three years because of a challenge from a patent holder. The double-edged sword of patents that spurred investment into the field will also cause chilling effects on research like the case of the Children's Hospital of Orange County. They've now been forced to shift the money from the lab to lawyers in order to deal with this ongoing patent dispute over a technique that was developed to extract stem cells at the Salk Institute. Unfortunately the Salk Institute failed to patent the technology, so a company named StemCells happily had it approved. The real disheartening news is that CHOC's Dr. Philip H. Schwartz — the doctor collecting the cells — was one of the original researchers who helped developed this technique at the Salk Institute. Now he can't even use the technique he helped create. Schwartz has since been instructed not to publicly discuss the case further. Research interests are clashing with commercial interests in a classic case that causes one to wonder if patents surrounding medical techniques like this stretch too far. As for the people that donated their dead child's brain to research, those valuable stem cell cultures have been kept in storage instead of being disseminated to research labs (which desperately need them) across the country."

This is a great example of why defensive patents are necessary. The inventor can obtain the patents, then grant anyone a free, perpetual license to use the technology. Hopefully, the doctor will win the lawsuit based on his work in creating the process but it's pretty crazy that it's not certain that he can win unless his creative process was public enough to constitute prior art.

Research is a noncommercial endeavour, and as such patent infringement cannot occur. What these "researchers" were trying to do with these brains was something akin to a commercial endeavour, whereby the can extract the stem cells within the dead children's brains, grow them as eternal cell culture and cell these renewing stem cell cultures to real researchers. If they were performing non-profit research, they could use whatever technique the wanted to... it's like a hobby.

You can go tinker with your car and fabricate a new intake manifold on your own to make it go faster, and not be afraid of being sued for patent infringement because you used some company's design for an intake manifold. When you start racing professionally with that car seeking sponsorships and purses, then you've committed patent infringement.

Life, and the building blocks of life should never be considered for a patent. Genes are one more item that I would say should never have a patent too. It's a very sad day when the very thing you help create you no longer can use because some Company now own the patent. This is closing out other innovations that could come from open research. It all breaks down to this, Every one wants to make a buck, and they don't care what they have to do to make that happen.

Honestly, Just move to another country that doesn't respect the US patents and start saving lives. I'm sure India would love to have your expertise. There is also the United Arab Emirates, and the other Oil producing nations that are actively building research facilities to help them compete when the oil runs out.

Executive summery, fourth paragraph:"We have over forty issued U.S. patents, plus foreign equivalents to some fourteen of our U.S. patents and applications, for a total of over one hundred and seventy individual patents worldwide."This company is clearly a patent troll, NOT a technology company. Shame shame shame.

This happens a lot. The sticking point is often that the patent owner offers the research lab a license to use their technology, but the lab has to sign an agreement to turn over the rights to all the commercially useful results of the lab's research to the patent holder. Often the agreement is so onerous, the researchers refuse to sign.

With the BRCA gene patent that was recently overturned, the lab could do research with the BRCA test for free, but if they found out one of their subjects was positive for the BRCA gene, they weren't allowed to tell the subject, because Myriad Genetics was charging $3,000 per test.

As to the prior art -- I thought the same thing. Academic scientists always publish anything useful, and if it was published, it would be prior art.

A 20 year patent seems ridiculous when product lifecycles and discoveries are moving much more quickly.

Definitely. In some industries -- practically anything electronics-based, for example -- a five year patent would probably be excessive. Patents would be a lot more productive if they were scaled to the rate of change in their industry, and perhaps more importantly, could be invalidated if it was shown that a particular patent was causing irreparable harm to individuals, as might be the case where someone is denied medical care as a result.

Coincidentally, the Salk Institute was founded by Jonas Salk [wikipedia.org], the saint-like figure who developed the polio vaccine in the 1950s and then intentionally did not patent it.

When news of the vaccine's success was made public on April 12, 1955, Salk was hailed as a "miracle worker", and the day "almost became a national holiday." His sole focus had been to develop a safe and effective vaccine as rapidly as possible, with no interest in personal profit. When he was asked in a televised interview who owned the patent to the vaccine, Salk replied: "There is no patent. Could you patent the sun?"

Defensive patents cost money, which requires investors and therefore profits. By allowing a system that requires inventors to file defensive patents, we are eliminating any future Salks.

If Schwartz still worked at the Salk, he (or anyone else there) could be freely using the process he invented, in spite of any third-party patent. Of course this assumes the Institute has documentation Schwartz invented the technology prior to StemCells having applied for their patent.

Unless the research was actually published in some way that the second group would have seen before being successful. A science journal they have a subscription to would suffice but lectures in which members of their team attended could pose just as big of a problem.

anyways, there should be compulsory licensing for any patent when used in a medical research/treatment environment.

1) The assesor of the value of a patent have an interest to accept any patents because it makes money for them2) the non profit loophole is useless, because the non profit entity could not do anything with the results, not even give it away for free, the only thing they could do is to give it to the "holder(s)"
moreover defining what is non profit and for profit is in practice impossible3) in all case the guy with much money for it's lawyers and nothing to looses wins (i.e. patent trolls)

to make the system "kind of work", you would need to have the patent organisations do two things-1) garanty with their own money the validity of the patent (so if they misses some prior art they are punished), and the damage they might be paying should be put immediatly in escrow
to make sure that they cannot just try to wiggle out of it.-2) It should define an uniform licence price that apply to all, so that the usage of the patented tech is anonymous (otherwise the patent holder has a free market research based on it's competitors numbers)then another entity should be managing the payments of the IP.

This would limit the most horrible issues of patents, but it would still pour concrete in the wheels and make research and dev. much more expensive than it needs to be.

The patent abuses that the current system fosters used to have me firmly against the system as a whole. Now, the patent system is what writes my paycheck.

I'm doing PhD work at a very large US research university. Our patent portfolio goes back something like 80 years, and the money from licensing those patents was invested back into the research endowment. Today, we can fund thousands of graduate researchers due to that research endowment, all built on the money from licensing stuff discovered here.

I used to be all for throwing out the bulk of our patent law. Now, I see that some real good can come from it. The question is how to fix problems like the one in this article, without damaging institutions like the one I'm doing research at. Shortening patents doesn't seem to be the answer, and while I think it would be great for universities to use patents freely, it's completely anticompetitive if they can also patent what they create. Saying that universities can't patent things wipes out research endowments like the one that currently pays me and thousands of other graduate students.

Prior art is sort showing that something was copied. You can't patent the automobile because it already exists and is in the public. Your neighbors car would be prior art.

Now, it doesn't really matter if you copied the thing itself or came up with the idea while being stoned one night and made it the next day while recovering. Being in the public is a way of saying you should have known.

Now when something isn't in the public, then being able to show that whoever is attempting to patent is was exposed to it before having a working solution/device is about the same as prior art. They knew it existed. However, that is a little harder to show. Something like that wouldn't necessarily invalidate the patent outside, it could invalidate their control of the patent and put it into the hands of the inverters.

For some people, doing a service to humanity is a noble enough thing. However, it's probably possible to create a free license to the patent for charity work and charge something for commercial work and save the same end results with money to boot.

I think this could all be mooted if there was compulsory licensing of patents when pertaining to certain fields. They could also step the compulsory licensing fee if the use is charitable or nonprofit.

Bullshit. The method was easy enough that multiple people have independently discovered it and it is now locked down so that nobody else can use it, at least without paying a worthless person who didn't even invent anything.

A simple, usable method for something was easily available and in use, now it is not. The public lost, and big.

People worldwide can now build on that technology, either through licensing of it or by trying to find work-arounds.

What kind of retard are you that you think it's going to be easier? The easy method is now taken, to work-around it they're going to have to needlessly complicate what should be a simple task. Pre-patent they'd have just looked in the lit, found who was doing it and asked him to explain his technique.

Patents should automatically be voided if anyone ever (before or after) independently invents the same thing.

I saw a similar story (though of a much smaller scale). A tow-truck towed the wrong car, badly, and then abandoned it ruined on the side of the road when the error was discovered. By the time the owner found their vehicle a few hours later the towing company was dissolved. When the show investigated the owner had had many such companies.

This is why I advocate removing the so-called corporate veil. I feel that unless you actively pursue honest dealings in your company (forward all transactions to auditors, audit processes for holes, etc) that you should go down with the company if it's found to have committed a crime. All the way up to the shareholders. Investing in a company not sufficiently open for you to be sure it's really clean should get you in trouble if it's not, like buying a TV for a too-good-to-be-true price.

If these patent trolls were unwound after failure and traced back to their owners, which were similarly unwound, all the way to the people who ordered their illegal actions I wouldn't have half the problem with patents that I do.